[A modified version of this post first appeared on the Indian Constitutional Law & Philosophy Blog]
The Bombay High Court decision in Shaikh Zahid Mukhtar v. State of Maharashtra was delivered on 06.05.2016. It determined various constitutional challenges to the Maharashtra Animal Preservation (Amendment) Act, 2015. The Constitutional questions decided by the decision of Justice Oka has been done by the Indian Constitutional Law & Philosophy Blog already. Consideration of the issues discussed by the separate opinion of Justice Gupte was left, which is what I seek to address. Justice Gupte tackles Section 9-B of the Amendment Act [hereafter, the Act], which reads:
“In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions of this Act, the burden of proving that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act, shall be on the accused.”
The separate opinion struck down Section 9-B of the Act as unconstitutional. In this comment, I first give a basic introduction to reverse burden (or reverse onus) clauses, moving on to discuss the specific reasoning adopted in the Separate Opinion for holding the provision unconstitutional.
An Introduction on Reverse Burdens
Ordinarily, in criminal cases the burden to establish the guilt of an Accused rests on the state. This dovetails with the essential principle of every Accused having a presumption of innocence in her favour. Over time, though, many statutory inroads have been made into this principle. Beginning with requiring an Accused to establish certain facts (evidential burdens), today there are several instances of Accused persons requiring to establish innocence itself (legal burdens). The Supreme Court held these clauses to be constitutional even where they impose legal burdens, in Noor Aga v. State of Punjab [(2008) 16 SCC 417]. This blog discussed reverse onus clauses earlier, here and here.
Consider an example from the Narcotic Drugs & Psychotropic Substances Act, 1985 [hereafter, NDPS Act]. This employs two reverse onus clauses. Section 54 of that Act creates a presumption that the Accused is guilty of an offence, if she fails to ‘satisfactorily account’ for possession of contraband. Section 35 states that in a prosecution under the NDPS Act, it would be presumed that the Accused has the ‘culpable mental state’ necessary for the offence.
How these operate was clarified by the Supreme Court in Inder Sain v. State of Punjab [(1973) 2 SCC 372, a case under the old Opium Act, 1878]; Noor Aga v. State of Punjab [supra]; Dharampal Singh v. State of Punjab [(2010) 9 SCC 608]; Bhola Singh v. State ofPunjab [(2011) 11 SCC 653]. According to these decisions, the prosecution must prove initial facts – there was contraband, and it was in the conscious possession of the Accused – which creates a presumption of guilt, shifting the burden on the Accused to rebut that presumption. Note, though, that the prosecution is not required to prove that the Accused was knowingly in possession of the contraband itself. For instance, in Dharampal, 65 kg of Opium was recovered from the boot of the car owned and driven by the Accused. The prosecution was not required to prove that the Accused knew that the boot had the contraband. The presumption was cast as soon as the prosecution proved the material was contraband, and that it was in the boot of the car owned and driven by the Accused. It was now on the Accused to rebut this presumption.
The Separate Opinion’s Analysis of Reverse Burdens
At the outset, I must applaud the opinion for having extensively discussed the issue of reverse burdens. The vociferous opposition initially faced by these clauses across the common-law world has certainly shifted to a resigned acceptance in light of the perceived needs of law enforcement. However, we are now in a time when legislatures resort to such egregious provisions at the drop of a hat, exhibiting a numbness to the severe curtailment of liberties they entail. Parts of the opinion specifically address this problem, as Justice Gupte attacks the very need of having such a clause while dealing with a substance such as beef, which, as admitted by the state, carries no intrinsic harm or threat to society as opposed to say drugs [Paragraph 215, Pages 235-236].
Moving on to considering the opinion more substantively. Justice Gupte bases his attack upon Articles 14 and 21 of the Constitution of India. After citing various decisions, both Indian and foreign [Paragraphs 202-212, Pages 210-231], Justice Gupte arrives at the following four-fold test for considering the validity of any reverse onus clause [Paragraph 213, Pages 231-232]:
- Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
- Does the proof of these balance facts involve a burden to prove a negative fact?
- Are these balance facts within the special knowledge of the accused?
- Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?
The First Condition restates that the provision must require basic facts to be established by the prosecution before talk of any presumptions and reversing burdens. This must bear enough of a ‘probative connection’ with the presumption sought to be drawn. Going back to the example of Dharampal above, we can usefully juxtapose it with the decision in Bhola Singh. In the latter, the Supreme Court set aside the conviction for a co-owner of a truck which was caught transporting contraband based on the presumption. The Supreme Court held the presumption was not attracted, as the prosecution didn’t prove any basic facts connecting the Accused with the contraband. The prosecution didn’t show the Accused knew how his truck was being used by the contractor, let alone him knowing that the truck was being used to smuggle contraband.
From this, the Second and Third Conditions address the kind of facts that are to be presumed. The idea behind this is an understanding that reverse onus clauses only make sense where the issue is lying within the ‘special knowledge’ of the Accused or to prove ‘negative facts’. ‘Negative facts’ are the existence of permissions such as licenses or tickets, which play a role where offences rely on the inexistence of these permissions. ‘Special knowledge’ is a reference to mental states of an Accused. This is trickier. Any culpable mental state will always be a matter for the ‘special knowledge’ of an Accused, inviting the argument that in every trial the burden must be on the Accused to disprove intention after the prosecution establishes the physical act. Enter, the fourth condition, which places the handbrake on extending such logic too far. It reminds us of the fundamental David v. Goliath nature of the contest though, and how difficult it is for an Accused to find and present evidence to establish his innocence beyond his own word for his deeds.
Overall, then, there is little to disagree with the framework Justice Gupte establishes for evaluating reverse onus clauses in his separate opinion. The first and fourth conditions are the actual ‘tests’ upon which the reverse onus clause will be tested. If you clear the first test, the framework requires determining what kind of presumption is placed on the Accused, before considering whether placing such a presumption is unduly burdensome and oppressive. Considering there is no such clear test available in judicial decisions at present, it is a welcome contribution which should prove helpful in providing a systematic consideration of the various reverse onus clauses we have at present, and are bound to have in the future.
Applying the Tests to Section 9-B of the Act
Section 9-B is meant to apply to every offence under the Act, i.e. offences under Sections 5, 5-A, 5-B, 5-C, 5-C and 6:
- Section 5 makes it an offence to slaughter cows, bulls, or bullocks in any part of Maharashtra;
- Section 5-A makes it an offence to transport and/or export cows, bulls or bullocks (or cause to, or offer to do so) within or outside Maharashtra in contravention of the Act or with knowledge that the animal will, or is likely to be, slaughtered;
- Section 5-B makes it an offence to purchase/sell/otherwise dispose of cows, bulls or bullocks (or offer to do so), knowing or having reason to believe the animal will, or is likely to be, slaughtered;
- Section 5-C criminalized possession of the flesh of a cow, bull or bullock slaughtered in contravention of the Act;
- Section 5-D criminalized possession of the flesh of a cow, bull or bullock slaughtered outside Maharashtra;
- Section 6 regulated the slaughtering of cows, bulls or bullocks and made it an offence to slaughter such animals without obtaining a certificate.
The obvious problem with Section 9-B is its broad and indiscriminate phrasing, placing the burden upon the Accused for proving every ingredient of the offence. In order to make the section apply to all offences in the Act, it burdened the Accused with proving “that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act.” The basic fact concept would require the State to at least prove that the cow or flesh in question was slaughtered, transported, exported, sold or purchased. It would also require that a connection be drawn between that cow or flesh in question and the Accused. Section 9-B allowed the prosecution to get away without doing anything, violating the very basic First Condition.
Justice Gupte, however, begins by specifically looking at the possession offences under Section 5-C and 5-D of the Act through the lens of the Second Condition [Paragraph 214, Pages 233-235. After immediately concluding that the Accused could never establish the ‘negative fact’ of the flesh not being that of a cow or bull, Justice Gupte immediately also concludes that the Accused could never establish that the flesh was obtained in contravention of the Act to begin with, and immediately thereafter concludes this violates his Fourth Condition of oppression. At the end of these assertions, he states that it would be easier for the State to prove these foundational facts, and absence of any such requirement was itself a problem. While having created a clear four-fold test, Justice Gupte doesn’t maintain these neat distinctions in his scrutiny of the provision on its anvil. The confusion is apparent in the Paragraph, and blunts what would have otherwise been a forceful criticism of the provision.
These objections were in some measure expected by the State. As recorded in the Separate Opinion, the Advocate General for Maharashtra conceded Section 9-B would apply only after the prosecution established certain initial facts. At one point, it is recorded how the Advocate General interpreted Section 9-B to apply only to create a presumption after every physical act had been established. This interpretation would have meant Section 9-B operated to presume that the concerned physical act – transport/export/possession etc. – was done knowing that it was contrary to the Act.
This would have made Section 9-B akin to those clauses which presume the existence of the mental state, considering it to be within the ‘special knowledge’ of an Accused. However, as Justice Gupte rightly noted, “Constitutionality cannot be a matter of concession by the State at the hearing” [Paragraph 215, Page 235-236]. Justice Gupte doesn’t stop there, though, and then proceeds to attack the ‘special knowledge’ justification offered by the Advocate General [Paragraphs 216- 217, Pages 237-240]. As I mentioned above, it is here that Justice Gupte criticizes the usage of reverse burden clauses in this context of possessing cow meat, citing the inherently harmful nature of substances such as narcotics which can warrant possession-based presumptions. This is critical, and exposes future legislation employing reverse burdens with possession based offences to closer scrutiny under Article 14 of the Constitution.
The Opinion then moves to Section 5-A and 5-B. Section 9-B would have placed the entire burden on the Accused, which was naturally unsustainable. A version that kicked in only to create a presumption that the Accused had knowledge that the offending acts of transport/export/sale/purchase would lead to slaughter or were otherwise in contravention of the Act was also found unsustainable. The basis for this conclusion was an insufficient connection existed between the prosecution proving the physical acts and the ultimate presumption of knowledge (violating the First Condition). The offence was purely based on knowledge, and presuming that very ingredient would subject the Accused to oppression (violating the Fourth Condition). Section 9-B was unconstitutional when applied together with Sections 5-A and 5-B as well.
Lastly, Justice Gupte arrives at Sections 5 and 6, which were present before the Amendment. The analysis is crisp as it is brief – Sections 5 and 6 read with Section 9-B would involve a presumption of foundational facts, which would render its use unconstitutional for a violation of his First Condition.
What to Expect Now?
Newspapers have already reported that the State of Maharashtra plans to challenge this decision in the Supreme Court. A part of me hopes this happens, as it would enable the Supreme Court to, hopefully, endorse the exposition of the Separate Opinion on reverse onus clauses. The test created is clear, and potentially allows for greater clarity in examining these provisions which currently abound our statute book. In its current form, Section 9-B is far too broad to be considered sustainable. One would assume that the chances of the Supreme Court overturning the verdict are unlikely.
The higher probability is of a modified Section 9-B emerging from the Maharashtra legislature, incorporating the position espoused by the Advocate General during the hearing before the Bombay High Court. A version of Section 9-B which explicitly places an initial burden on the prosecution would then place the focus squarely on the other condition created by Justice Gupte, of such a provision placing an Accused under oppression and undue hardship. That consideration, whenever it does happen, will prove to have a lasting impression on how reverse onus clauses are viewed in our criminal justice system.